Great Minds Think Alike

In the escalating battle between the administration and the judiciary, a
federal appeals court apparently is calling the president's bluff --
ordering the Justice Department to answer by Thursday whether the Obama
Administration believes that the courts have the right to strike down a
federal law, according to a lawyer who was in the courtroom.

So, it looks like the President just got assigned a book report on Marbury vs. Madison. You think that he would come out and say "I certainly believe in judicial review, and I hope that the Justices agree with the Solicitor's argumentsand uphold the ACA. Next question." That's all he needs to say. It's not hard. But noooooo....he has to double down on stupid. Here's our President's response when asked about judicial review:

Well, first of all, let me be very specific. We have not seen a Court
overturn a law that was passed by Congress on a economic issue, like
health care, that I think most people would clearly consider commerce — a
law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

He couldn't just leave it alone. His ego is way too big for that. He's got to prove that he's the smartest guy in the room. So, he finds a widely disliked case (like Lochner, Plesssy, ect.) and basically says that if you decide against the ACA, it's going to be just like Lochner. The Horror!

The problem is, the opinion in Lochnerheld that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract". It was subsequently overruled. Notice anything about the commerce clause? Neither did I. That's because Lochner isn't a commerce clause case. It isn't applicable to the current discussion.

So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding. I betcha they can't. Even if they're the President.